Obstruct, Cover up, and Fearmonger

It is worth revisiting the opening statement to the Justice Committee by Clerk of the Privy Council Michael Wernick, in light of later revelations from former Attorney-General (AG) Jody Wilson-Raybould to the same Committee a week later.

Some of what Wernick said seemed completely off topic at the time, such as this: “I’m deeply concerned about my country right now and its politics and where it’s headed. I worry about foreign interference in the upcoming election and we’re working hard on that… I worry about the trolling from the vomitorium of social media entering the open media arena.” Why is reassuring Canadians that the Liberal government is working hard on the problem of fake news relevant to an inquiry into prosecutorial independence in the SNC-Lavalin (SNC) affair?

Wilson-Raybould described in detail efforts made by the Prime Minister’s Office to implement a plan to manoeuvre around the decision of the Director of Public Prosecution (DPP), Kathleen Roussel, not to negotiate a remediation agreement (RA) with SNC-Lavalin. The plan involved obtaining a legal opinion from an “eminent person” to the effect that the DPP was mistaken in deciding that the company’s situation was not a good case for a RA. This opinion would be used as the basis for Wilson-Raybould to issue a directive to Roussel to negotiate with SNC.

In her testimony, Wilson-Raybould quoted Trudeau’s Chief of Staff, Katie Telford, as saying, “If Jody is nervous [about implementing the PMO’s plan], we would of course line up all kinds of people to write op-eds saying that what she was doing is proper.” In fact, as Wilson-Raybould’s testimony made abundantly clear, the PMO’s plan was anything but “proper.” In short, to provide cover for using a bought-and-paid-for legal opinion from an “eminent person” the PMO would flood the mainstream news media with bought-and-paid-for political op-eds.

Katie Telford is married to Rob Silver. Rob Silver, in addition the being a regular panelist on CBC’s Power & Politics program, is a founding partner at Crestview Strategies. Crestview specializes in “mobilization campaigns,” which involve the manipulation of public opinion through the mobilization of activists and opinion-mongers. One wonders on how many stories the PMO had successfully employed Telford’s news-doctoring strategy in the past? And on which issues?

This casts into a new light the Liberal government’s plan to promote a tier of “respectable” – meaning Liberal-friendly – journalist outlets through government subsidies to the tune of $595 million. Why go to all the trouble of mobilizing a horde of op-ed writers whenever you want to promote a Liberal initiative, when you can own the “open media arena” outright?

Clerk of the Privy Council Michael Wernick waits to testify before the House of Commons Justice Committee in Ottawa. (Image: Chris Wattie / Reuters)

This also casts into a new light the Liberal government’s plan to monitor social media for fake news during this year’s election campaign. It’s not fake news that Wernick and the PMO are concerned about; they seem to be the most dangerous source of it. What concerns them is real news that hurts the Liberal brand – like the widespread and growing anger across the country over Bill C-48, Bill C-69, and the carbon tax, represented by the “United We Roll” convoy and rally at Parliament Hill on the very day of Wernick’s testimony.

And what did Wernick have to say about this very real, grass-roots uprising against the Liberal government? He raised the spectre of political violence and assassinations.  Alluding to comments by Conservative Senator David Tkachuk at the rally urging the defeat of Liberal MPs in this year’s election, he said, “I think that it’s totally unacceptable that a member of the Parliament of Canada would incite people to drive trucks over people, after what happened in Toronto last summer.”

Finally getting to the point of the hearing, Wernick went on to say, “In the matter of SNC-Lavalin, it is now seven years since the first police raid on the company, four years since charges were laid by the RCMP, and during that entire time, up to today, the independence of the investigative and prosecutorial function has never been compromised.” Maybe. But it certainly wasn’t for lack of trying.

In her testimony, Wilson-Raybould stated that Roussel had reached her decision not to negotiate a RA with SNC on September 4. A mere two days later, Ben Chin, the Chief of Staff of Finance Minister Bill Morneau, was already hounding Wilson-Raybould’s Chief of Staff, Jessica Prince, to change this outcome, citing electoral politics in Quebec as the motivating reason. (“Protecting jobs” would ultimately become the public excuse.) How did the Chief of Staff of a completely unrelated ministry know almost immediately about the DPP’s every move?

The next day, Prince phoned the Deputy Minister of Justice, who told her she was already working on some “options” for getting around Roussel’s unwelcome decision. Wilson-Raybould certainly hadn’t asked her Deputy Minister to “work on options” for circumventing Roussel’s decision, since she was content with it. Where did the Deputy Minister of Justice get this direction from, then, if not from political operatives outside the ministry’s chain of command?

Jody Wilson-Raybould appears at the House of Commons Justice Committee on Parliament Hill in Ottawa. (Image: iPolitics/ Matthew Usherwood)

On September 11, according to Wilson-Raybould, Chin contacted her office again, relating information he had acquired from SNC about the way the matter was developing, including details from Roussel’s letter to SNC. He relayed how SNC’s lawyer, retired Supreme Court of Canada Justice Frank Iacobucci, had responded to it. Iacobucci was of the view that this wasn’t a final decision but a “negotiation” – i.e. a negotiation to negotiate a RA on terms that SNC would be willing to accept.

It gets worse. On September 16, Prince received a phone call from Mathieu Bouchard and Elder Marques from the PMO. They revealed that SNC had made further submissions to the Crown Prosecutor. It must be explained at this point that the Public Prosecution Service of Canada (PPSC) is a large legal department, headed by the DPP. The DPP does not actually handle the day-to-day correspondence between litigants on every file; rather, individual Crown Prosecutors are responsible for the conduct of prosecutions, and the DPP’s role is to assign cases, review important decisions, and liaise with the AG.

What Bouchard and Marques told Prince next is stunning. They said that the Crown Prosecutor assigned to the case wanted to negotiate a RA with SNC, but that Roussel didnot. This is stunning because what goes on inside the PPSC is supposed to be kept strictly confidential. Discussions among the staff lawyers in the PPSC, and between those lawyers and the DPP, are protected not only by solicitor-client privilege, but also by litigation privilege. Yet somehow, the PMO was able to tell the Chief of Staff of the AG things that the AG apparently didn’t even know about what discussions were happening among the lawyers in her department. Who breached privilege to give this inside information to the PMO?

The kicker is that the PMO was at the same time deeply involved in detailed communications with SNC – the defendant – on the very same matter. How can we be sure that privileged information within the PPSC was not passed on to SNC Lavalin by friends of friends of friends of lobbyists within the Liberal government?  Is it just a coincidence that by the middle of October, SNC had filed an originating notice in the Federal Court (Trial Division) seeking judicial review of the DPP’s decision not to negotiate?

Somehow the PMO was able to tell the Chief of Staff of the AG things that the AG didn’t even know about discussions among the lawyers in her department. Who breached privilege to give this inside information to the PMO?

Recall the PMO’s aforementioned plan to circumvent Roussel’s decision, which involved obtaining an external opinion from an “eminent person” on its soundness. The justification being given to Wilson-Raybould for seeking that external opinion was alleged dissension among the lawyers in the PPSC about the merits of a RA. The way to resolve the disagreement was to obtain an independent, expert legal opinion on the matter – one that could be considered more authoritative that either the individual Crown Prosecutor assigned to the case (who wanted to negotiate) or the DPP (who didn’t) – and which would magically come down on the side of the PMO’s preferred option. How could anyone see political interference in the prosecutorial function in any of that?

Wernick claimed in his opening statement that:

The only communications with the director of public prosecutions about the potential use of a deferred prosecution agreement, an instrument provided for by legislation, were conducted by the minister, as is appropriate. In this matter, the law is, that you as parliamentarians created, around ethics and government are demonstrably working. The prosecutor is independent. The lobbying act worked as intended. The ethics commissioner self-initiated his own process. In other words, the shields held. The software that is supposed to protect our democracy is working.

Wernick could not possibly know what he asserts in the first sentence quoted. Nor does it support the conclusion he arrives at. If Wilson-Raybould’s testimony is proven to be accurate, then inappropriate illegal, and possibly criminal communications transpired between members of the PMO and someone inside the PPSC, and potentially between the PMO and SNC as well. The opposition has asked the RCMP to investigate for obstruction of justice. At the very least, ethics in government is demonstrably absent. Our “democratic software” is manifestly not working.

If the PPSC remains independent, it is only due to the difficult and principled stand taken by Wilson-Raybould in the first instance, and ultimately due to the anonymous source who leaked the story to the Globe & Mail which brought this travesty to light. If not for the leak, by now the current AG would likely have issued the much sought after directive to negotiate with SNC, and Wilson-Raybould would have resigned from Cabinet without being at liberty to say why. No wonder Wernick was so eager to vomit all over the Globe & Mail report, saying it “contains errors, unfounded speculation and, in some cases, is simply defamatory.”

The only part of Wernick’s opening statement that seems truly apropos to the whole affair is this: “I’m deeply concerned about my country right now and its politics and where it’s headed.”

Grant A. Brown has a DPhil from Oxford University and an LL.B. from the University of Alberta. He taught applied ethics and political philosophy at the University of Lethbridge in the 1990s, and practiced family law in the 2000s. He currently runs a B&B in Stratford, Ontario.

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